Wisconsin Community Services v. City of Milwaukee

• Citation: 465 F.3d 737
• Decision Date: 26 September 2006
• Docket Number: No. 04-1966.,04-1966.
• Parties: WISCONSIN COMMUNITY SERVICES, INC. and Wisconsin Correctional Foundation, Incorporated, Plaintiffs-Appellees, v. CITY OF MILWAUKEE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

465 F.3d 737

WISCONSIN COMMUNITY SERVICES, INC. and Wisconsin Correctional Foundation, Incorporated, Plaintiffs-Appellees, v. CITY OF MILWAUKEE, Defendant-Appellant.

No. 04-1966.

United States Court of Appeals, Seventh Circuit.

Reargued En Banc January 18, 2006.

Decided September 26, 2006.

Robert Theine Pledl (argued), Milwaukee, WI, for Plaintiffs-Appellees.

Jan A. Smokowicz (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendant-Appellant.

J. Damian Ortiz, John Marshall Law School Fair Housing Legal Support Center, Chicago, IL, for Amicus Curiae, John Marshall Law School Fair Housing Legal Support Center.

Gregory B. Friel, Dept. of Justice, Civil Rights Div., Washington, DC, for Amicus Curiae, U.S.

Before FLAUM, Chief Judge, and BAUER, POSNER, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD, EVANS and WILLIAMS, Circuit Judges.^*

RIPPLE, Circuit Judge.

Wisconsin Community Services ("WCS"),¹ a provider of treatment to mentally ill patients, brought this action under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and section 504 of the Rehabilitation Act of 1973, id. § 794. The WCS sought an injunction ordering the City of Milwaukee ("the City") to issue a zoning permit that would allow it to move its mental health clinic to an area of Milwaukee, Wisconsin, where health clinics are permitted only on a case-by-case basis. The district court granted partial summary judgment to WCS, concluding that the ADA and the Rehabilitation Act obligated the City to accommodate the disabilities of WCS' patients by allowing WCS to move to its desired location. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand for proceedings consistent with this opinion.

I BACKGROUND

A. Wisconsin Community Services

WCS is a private, non-profit organization that provides a variety of inpatient and outpatient services to individuals afflicted with severe mental illnesses.² WCS provides patients, who cannot live alone without substantial assistance, with psychiatric treatment, counseling, medication monitoring, transportation and help in finding housing and employment. A number of WCS' patients have a history of substance abuse, and a majority have had previous run-ins with the criminal justice system; WCS often accepts patient referrals from court-related agencies such as the United States Probation Service. Although WCS staff sometimes will treat patients in their homes, most of WCS' services are administered in a 7,500 square-foot mental health clinic located at 2023 West Wisconsin Avenue in the City of Milwaukee. Originally, WCS shared this facility with other non-profit organizations, but, as its clientele grew, WCS expanded to occupy the entire building. In 1994, at the time of this initial expansion, WCS employed twenty full-time employees and served 250 patients.

By 1998, the staff at WCS' 2023 West Wisconsin Avenue facility had grown to approximately forty full-time employees serving approximately 400 patients. This increase in clients, services and personnel had caused a shortage in space available for employee parking, client treatment, group therapy sessions and other services. Faced with the shortage, WCS at first considered remodeling, but finally concluded that such a project would be too costly and would interfere with client care. WCS then began searching for a new building. Despite having a limited budget, WCS needed a facility that was located in a safe neighborhood and had adequate floor space, parking and access to public transit. After searching for three years, WCS was able to find two buildings that met its criteria. Neither property, unfortunately, was located in a neighborhood zoned for health clinics. Both were in areas where health clinics are permitted only as "special uses" that require issuance of a permit by the Milwaukee zoning authorities.

WCS previously had received this type of special use permit for some of its other facilities. It therefore made an offer of purchase for one of the properties, contingent on obtaining the necessary special use permit from the Milwaukee zoning board. The seller of this property, concerned about this contingency, declined to accept the offer. WCS then abandoned its efforts to purchase that property and instead made a similar contingent offer on the other identified property. This facility was an 81,000 square-foot building located about one mile from its current facility at 3716 West Wisconsin Avenue. The larger facility is located in an area zoned as a "local business district." Milwaukee, Wis. Code § 295-703-1. According to the City Code's "use table," health care clinics, except for nursing homes, are deemed "special uses" for this zone. Id. § 295-603-1. Incidentally, the same zone allows foster homes, shelter care facilities, community living arrangements and animal hospitals either as "permitted" or "limited" (no special approval required) uses. Id. The seller accepted WCS' offer.

B. The First Proceeding Before the Board of Zoning Appeals

Milwaukee's City Code defines "special use" as "[a] use which is generally acceptable in a particular zoning district but which, because of its characteristics and the characteristics of the zoning district in which it would be located, requires review on a case by case basis to determine whether it should be permitted, conditionally permitted, or denied." Milwaukee, Wis.Code § 295-7-166. Special use designations are instruments of municipal planning that allow city officials to retain review power over land uses that, although presumptively allowed, may pose special problems or hazards to a neighborhood. See generally Delta Biological Res., Inc. v. Bd. Zoning Appeals, 160 Wis.2d 905, 467 N.W.2d 164, 166-67 (Wis.Ct.App.1991).

In Milwaukee, an applicant for a special use permit must present its plans to the Department of City Development ("the DCD"), where they are reviewed by a plan examiner. If the DCD denies the special use application, the applicant may appeal the decision to the Milwaukee Board of Zoning Appeals ("BOZA"), where the application is reviewed, a public hearing is held and evidence is heard. See Wis. Stat. § 62.23(7)(e). Consistent with this procedure, WCS submitted a plan to DCD, outlining its intent to relocate the mental health clinic and several of its administrative offices to the new building. The plan stated that WCS would occupy 32,000 out of the 81,000 square feet of space in the building. An additional 12,000 square feet, according to the plan, would be occupied by two existing tenants, a Walgreens pharmacy and an office of the Social Security Administration. The remaining 37,000 square feet, the plan stated, would be rented out for use as office space or for other commercial purposes.

Under Wisconsin law, in deciding whether to issue a special use permit, the City's zoning officials are guided by four statutory considerations: (1) protection of public health, safety and welfare; (2) protection of the use, value and enjoyment of other property in the neighborhood; (3) traffic and pedestrian safety; and (4) consistency with the City's comprehensive plan. See Milwaukee, Wis.Code § 295-59-5.5. After reviewing WCS' plan, DCD concluded that these criteria had not been met. Specifically, DCD expressed concern over the second factor, protection of neighboring property value. It stated that use of the property as a mental health clinic would jeopardize the commercial revitalization that the neighborhood currently was undergoing. WCS, availing itself of its right to administrative review, then appealed the DCD's decision to Milwaukee's BOZA.

On March 22, 2001, BOZA held a hearing on WCS' appeal. At the outset, WCS argued that, even if its proposal did not meet the special-use criteria, the ADA required BOZA to modify these criteria so that WCS would have the same opportunity to obtain a permit as would a clinic serving non-disabled individuals. BOZA denied this request because it did not believe that it had the authority to deviate from the City's zoning code. Indeed, BOZA prohibited WCS from introducing evidence on the issue. Confined to making its case under the unmodified special use considerations, WCS presented evidence in an effort to refute the perception that the mental health clinic posed a safety threat and would discourage businesses from locating in the neighborhood. This evidence included testimony from a security official who told BOZA that, based on his own investigation, WCS' patients had not been the source of any safety problems in WCS' current neighborhood. WCS also presented letters from its current neighbors to the same effect. Finally, WCS submitted evidence of an award it had received from the National Institute of Justice for exemplary care of previously institutionalized individuals with mental health needs.

BOZA then heard testimony in opposition to the permit. An attorney representing several area businesses testified that opening a mental health clinic that serves a large number of young, unemployed males with histories of mental illness and illegal behavior substantially increases the chance of crime and anti-social behavior in the neighborhood. In a similar vein, a nearby high school voiced its fear that WCS' clients would be riding public transit alongside its "young and vulnerable" students. R.15, Ex.B-1 at 43. Additionally, a neighborhood organization encouraged residents to object to WCS' request; it circulated leaflets that argued that the clustering of WCS' clientele "in one location on a daily basis raises a serious risk for the health and well being of people living and working in surrounding neighborhoods." Id., Ex.B-3 at 327-28.

On May 9, 2001, BOZA voted unanimously to deny WCS' application for a special use permit. The accompanying written decision said only that the proposed use was inconsistent with the considerations set forth in the zoning code....